No to death by hanging: More humane to impose longer prison terms

As human beings and the people of Malaysia, we do not want to kill or murder anyone, even those who commit the most grievous of crimes.

It is a folly to believe we are innocent because it is the courts that sentenced someone to death by hanging and the state that carried out the execution.

As the people of Malaysia, more so in a democracy, we are responsible for the laws of the land and the acts of intentionally killing anyone by the state.

Malaysians Against Death Penalty and Torture (Madpet) believes that justly, the Court of Appeal should not have – in the case of the killing of navy cadet Zulfarhan Osman Zulkarnain of the Malaysian National Defence University (UPNM) seven years ago – sentenced the six to death. The six are Muhammad Akmal Zuhairi Azmal, Muhammad Azamuddin Mad Sofi, Muhammad Najib Mohd Razi, Muhammad Afif Najmudin Azahat, Mohamad Shobirin Sabri, and Abdoul Hakeem Mohd Ali.

The court, in this case, was reported as saying, “Therefore, we unanimously decide that a single sentence is appropriate for all six defendants, and they shall be taken to a place of execution where they will be sentenced to death by hanging.“

For the crime of murder, no more do the Malaysian courts and judges have no choice but to sentence the convicted with the mandatory death penalty – unlike in the past. Now, the courts have the option to impose the alternative sentence of long-term imprisonment and whipping. 

Madpet hopes that the Malaysian courts demonstrate justice and compassion and stop using the death penalty. 

After 4 July 2023, there is an alternative sentence, other than death, for murder

After the Abolition of the Mandatory Death Penalty Act 2023 (AMDP Act) came into force on 4 July 2023, the sentence for murder (under Section 302 of the Penal Code) was no longer the mandatory death penalty. Instead, it became it “shall be punished with death or imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes”. 

Besides sentencing someone to death by hanging, there now is an alternative sentence available that does not involve the deprivation of life. 

Alternative sentence available for even murder committed before mandatory death penalty abolished

Section 39 of the AMDP Act states: “Upon the coming into operation of this Act, if a person is convicted by any court for the commission of an offence under section 121, 121A, 302 or 364 or paragraph 130C(1)(a), 130I(a), 130N(a), 130O(1)(aa), 130QA(a), 130ZB(a) or 374A(a) of the Code, the person, whether at a trial or on an appeal, shall be sentenced in accordance with the provisions of the Code as amended by this Act even though the offence was committed before the date of coming into operation of this Act.”

This means that the new sentence applies for all ongoing trials and appeals, and it did not matter when the crime was committed. 

This meant that when the Court of Appeal, allowed the appeal on 23 July 2023 in the case of the killing of navy cadet Zulfarhan Osman and found the six guilty of murder (Section 302), the court did not have to sentence them to death buthad the option to impose the alternative sentence of “imprisonment for a term of not less than thirty years but not exceeding forty years” plus “whipping of not less than twelve strokes”.

In this case, the court could have even sentenced the six to 40 years’ imprisonment, and these young adults, about 21 years old when they committed the crime, would come out of prison when they are over 60 years old. This would be just.

Even for murder, courts should justly avoid death sentence

In this case, there were about 18 others, then university students, who were involved in the torture of the late navy cadet Zulfarhan Osman for over two days, and at the end, five took turns “pressing a steam iron on the entire body of the deceased (Zulfarhan), including his private parts”, while one Abdul Hakeem was complicit in inciting and instructing the five.

After the end of torture on 22 May 2017, Zulfarhan sadly passed away on 1 June 2017. 

While the six involved in the torture in the later stage using the steam iron, were sentenced to death, it is ironical that the other 12 only ended up with a sentence of four years’ imprisonment. They ought to have received a higher sentence as it is hard to say that their earlier torture did not contribute to the death.

Why were the other 12 not charged for culpable homicide not amounting to murder? “Self-help” against suspected criminals by lay persons cannot be allowed.

Ironically, the 12 others were convicted under Section 330 of the Penal Code – voluntarily causing hurt to extort confession or to compel restoration of property, which is an offence prescribed usually for law enforcement. The 12 were just fellow students – not police or law enforcement. They had no right to extort confession or to compel restoration of property.

The law prohibits “self-help” when a crime is suspected? Reports must be made to the relevant law enforcement authorities when another is suspected of a crime. 

Hence, to convict under Section 330 may be seen as an acceptance of “self-help’ by lay persons, including the ‘torture’ of persons suspected of a crime by those who are not legally empowered to enforce the law. 

Should the 12 not have been charged, tried and convicted for the offence of culpable homicide not amounting to murder? 

More so, since it would have been most difficult to establish whether it was the earlier torture that involved kicking and beatings or the later ‘steam iron’ torture that caused the death? 

Section 330 should never be used on anyone other than police or law enforcement officers.

Why has no action been taken yet against the military hospital and the clinic with regard to the death?

A perusal of the High Court judgment revealed that Rumah Sakit Angkatan Tentera (Military Hospital) was allegedly informed on 23 May 2017, a day after the two-day torture ended but failed to act. 

The judgment also revealed that the deceased was allegedly then taken to the a clinic for treatment on 27 May 2017 and for another follow-up treatment at the same clinic the following day – but the clinic failed to inform the authorities about the crime. Surely, the clinic must have suspected that the patient was a victim of a crime and should have immediately informed the police? 

Should not action be taken against the hospital and the clinic, for if they had acted, death could have been avoided? 

The deceased passed away on 1 June 2017, several days after the torture. 

To sentence six to death, but the other 12 to just four years’ imprisonment may be a miscarriage of justice or inadequate administration of justice. The failure of the 12 to immediately inform the authorities should also be a consideration – was it acquiescence to the ongoing torture that ended with death? 

All responsible for causing the death should be held accountable. 

Moratorium on executions

Malaysia, since 2018, has committed to a moratorium on executions pending the abolition of the death penalty. Malaysia voted in favour of UN General Assembly Resolution no 73/175 of 17 December 2018, no 75/183 of 16 December 2020 and no 77/222 of 15 December 2022.

Therefore, these resolutions were supported by the post-2018 general election Pakatan Harapan government, the Perikatan Nasional government in 2020 and Prime Minister Anwar Ibrahim’s Pakatan Harapan led-coalition (also known as the “unity government”) in 2022.

Abolition now

For as long as Malaysia retains the death penalty in its laws, there is always a risk that people will continue to be sentenced to death. As such, Madpet calls for the total abolition of the death penalty.

In Malaysia, currently both the ruling parties in government and the opposition parties are for the ultimate abolition of the death penalty. So Madpet calls on Malaysia to take the next step after the abolition of the mandatory death penalty – to now totally abolish the death penalty.

Therefore,

Madpet calls on the public prosecutor and/or the convicted six to appeal the decision of the Court of Appeal with a view of changing the “death by hanging” sentence for murder to the alternative sentence of long-term imprisonment. 

Madpet calls for the public prosecutor to appeal the decision of the Court of Appeal with a view of also reviewing the conviction of the 12 under Section 330 Penal Code and to consider charging them for culpable homicide not amounting to murder. Self-help in punishing criminal suspects cannot be endorsed and certainly not by a court of law.

Madpet also calls on the public prosecutor to consider taking actions against the Rumah Sakit Angkatan Tentera (the military hospital) and the As-Salam Clinic, including the relevant staff in these institutions, for the actions or omissions with regard to this death. Surely, doctors and medical facilities are duty-bound to report to relevant law enforcement agencies when they come across a possible victim of a crime. 

Madpet reiterates its call for the abolition of the death penalty and for the maintenance of a moratorium on executions pending abolition.

Madpet also reiterates its call for the abolition of the inhumane corporal punishment of whipping, which is now provided for in Malaysia’s criminal laws. – Madpet

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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